EXHIBIT 10.g
SERIES A
PROMISSORY NOTE
$85,000,000.00 Delivered in Atlanta, Georgia
As of December 15, 1992
FOR VALUE RECEIVED, the undersigned, MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P., a Delaware limited partnership (hereinafter called the "Maker"),
does hereby promise to pay to the order of NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, a national banking association chartered under the laws of the
United States of America (hereinafter together with any holder hereof called the
"Holder"), at the office of AMRESCO-Institutional, Inc., 101 North Tryon Street,
NC 1-001-13-20, Charlotte, North Carolina 28255, or at such other place as the
Holder may designate in writing, in lawful money of the United States of
America, the principal sum of Eighty-Five Million and No/100 Dollars
($85,000,000.00), together with interest thereon from this date, at the rate
hereinafter set forth, calculated on the basis of 360 days per year, the
principal sum and interest being payable as set forth below.
Section 1. Rate of Interest and Payments of Principal and Interest
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From and after the date hereof until the Maturity Date (as hereinafter
defined), interest shall be due and payable at the rates and times as provided
in Article 2 of that certain Amended and Restated Loan Agreement dated of even
date herewith between the Maker and the Holder (the "Loan Agreement"), which
document is incorporated in its entirety herein by reference thereto.
The entire outstanding principal balance of the indebtedness evidenced
by this Note together with all accrued and unpaid interest shall be due and
payable as set forth in the Loan Agreement and in any event on the earlier of
(said earlier date being hereinafter referred to as the "Maturity Date"): (i)
December 15, 1999, or (ii) acceleration of the indebtedness evidenced by this
Note as expressly hereinafter provided.
Section 2. Prepayment
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The indebtedness evidenced by this Note may be prepaid on the terms and
conditions provided in Article 2 in the Loan Agreement. Notwithstanding anything
in this Note to the contrary, an acceleration of the indebtedness evidenced
hereby shall be deemed a prepayment.
Section 3. General Provisions
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In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Maker or inadvertently received by
the Holder, then such excess sum shall be returned to the Maker forthwith upon
the Holder having actual knowledge of
the excess. It is the express intent hereof that the Maker not pay and the
Holder not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may be legally paid by the Maker under applicable law.
This Note is secured by, without limitation, six deeds of trust and
mortgages securing properties located in the States of California, Michigan,
Ohio, North Carolina and Virginia dated February 7, 1990 (as amended,
supplemented or modified as of even date herewith and from time to time,
hereinafter collectively called the "Mortgages") by the Maker in favor of the
Holder. The Holder shall have the optional right to declare the amount of the
total unpaid balance hereof to be due and forthwith payable in advance of the
due date of any installment, as fixed in the Loan Agreement, upon (a) the
failure of the Maker to pay, when due, any amount hereunder within five (5) days
after written notice thereof from the Holder to the Maker (in the manner
prescribed in the Loan Agreement), or (b) the occurrence of any other "Event of
Default," as that term is defined in the Loan Agreement, and with the giving of
written notice and the expiration of any applicable cure period to the extent
prescribed in the Loan Agreement without cure. From and after the Maturity Date
(whether by acceleration or otherwise), or the occurrence of an Event of
Default, the entire unpaid principal shall bear interest from and after the
Maturity Date or, if earlier, the date of the occurrence of such Event of
Default until paid in full or such Event of Default is cured or waived in
accordance with the Loan Agreement at the Default Rate (as defined in the Loan
Agreement), computed on the basis of 360 days per year. Forbearance to exercise
this option with respect to any failure or breach of the Maker shall not
constitute a waiver of the right as to any subsequent failure or breach.
Time is of the essence of this Note and, in case this Note is collected
by law or through an attorney at law, or under advice therefrom, the Maker
agrees to pay all costs of collection, including reasonable attorneys' fees
actually incurred.
The Maker hereby waives presentment, demand for payment, protest and
notice of non-payment, except as expressly provided in this Note.
The Maker acknowledges that this Note shall be governed by the laws of
the State of Georgia.
The Holder may not sell, assign or transfer the Note or any interest
herein except as provided in Section 10. 17 of the Loan Agreement
Notwithstanding anything to the contrary contained in this Note, or any
of the other Loan Documents (as that term is defined in the Loan Agreement), the
Holder agrees to satisfy any judgment obtained against the Maker by the exercise
of the rights of the Holder under the Loan Documents, no other property or
assets of the Maker or any general partner or limited partner of the Maker, nor
any Affiliate (as that term is defined in
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the Loan Agreement) of the Maker, or of any general partner or limited partner
of the Maker, except pursuant to (a) that certain Foreclosure Guarantee dated
February 7, 1990 (as amended, supplemented or modified from time to time, the
"Foreclosure Guarantee") executed by Marriott MIDAH One Corporation, a Delaware
corporation ("MIDAH One", and (b) that certain Amended and Restated Direct
Access and Guaranty Agreement dated of even date herewith (as amended,
supplemented or modified from time to time, the "Direct Access Agreement")
executed by Marriott Corporation, a Delaware corporation ("Marriott"; Marriott
and MIDAH One collectively called the "Guarantors") shall be subject to levy,
execution or other enforcement procedures for the satisfaction of the payments
required under this Note, the Mortgages or for the performance of any other
covenants or warranties contained herein or under the other Loan Documents. The
Holder shall not bring any action to obtain a deficiency judgment against the
Maker or the general or limited partners of the Maker, or any officers,
directors, employees or Affiliates thereof (provided, however, this shall in no
way limit the rights, powers and privileges of the Holder pursuant to the
Foreclosure Guarantee or the Direct Access Agreement). Nothing contained herein
shall: (i) constitute a waiver of any obligation evidenced by this Note, or the
Loan Documents, or secured by the Mortgages, or in any way be construed to
release or impair the liens and interests of the Mortgages, or the indebtedness
evidenced by this Note, (ii) limit the right of the Holder to bring an action to
judicially foreclose the liens and interests of the Mortgages, or to confirm any
foreclosure or sale pursuant to any power of sale contained in the Mortgages, or
limit the right of the Holder to exercise its remedies under the other Loan
Documents, subject to the terms of Section 2.20 of the Loan Agreement, or (iii)
affect the right of the Holder to bring any action against the Guarantors under
the Foreclosure Guarantee or the Direct Access Agreement and satisfy any
judgments obtained against any of the assets of the Guarantors pursuant to the
terms and conditions of the Foreclosure Guarantee or the Direct Access
Agreement.
Notwithstanding the foregoing, the Maker and any general partner of the
Maker shall remain and be fully liable to the Holder for any loss or damage
suffered by the Holder as a result of:
(i) fraud or intentional damage or waste to any of the
Mortgaged Hotels (as that term is defined in the Loan Agreement) by the
Maker;
(ii) the Maker's retention of rents. room revenues or other
income which constitutes collateral under the Loan Documents arising
with respect to the Mortgaged Hotels which is collected by the Maker
after the Holder has given notice to the Maker that an Event of Default
has occurred under the Mortgages or the other Loan Documents (to the
full extent of any such rents or other income retained and collected by
the Maker in violation of the terms of the Loan Documents);
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(iii) failure to pay ad valorem taxes in violation of the
terms of the Mortgages;
(iv) any claims, liabilities, damages, costs and expenses
resulting from a violation of any federal, state or local laws, rules,
regulations or ordinances involving hazardous materials or substances
located on, in or under any of the Mortgaged Hotels;
(v) the Maker's misapplication or misappropriation of any
proceeds received by the Maker pursuant to any insurance policies or
condemnation proceeds or awards, in violation of the terms of the
Mortgages;
(vi) any sale, transfer or voluntary encumbrance of the
Mortgaged Hotels or any portion thereof or any interest therein, or the
FF&E (as that term is defined in the Loan Agreement), except as
expressly permitted in Section 8.1 of the Loan Agreement or as
otherwise permitted in the Loan Agreement or the other Loan Documents,
or with the prior written consent of the Holder;
(vii) failure to maintain insurance as required by the Loan
Agreement and the Mortgages; and
(viii) failure of the Maker to comply with Section 6.1(b) of
the Loan Agreement.
Notwithstanding the foregoing, the Sellers (as hereinafter defined)
shall remain fully liable for the obligations, liabilities, representations.
warranties and indemnifications contained in that certain Purchase Agreement
dated as of even date herewith among Marriott, Essex House Condominium
Corporation, Host La Jolla, Inc. and Marriott-Dayton Community Urban
Redevelopment Corporation (collectively, the "Sellers") and the Maker, which
survive the date hereof, as provided therein, and the Holder shall have recourse
against the Sellers to the extent assigned to the Holder in that certain
Assignment of Purchase Agreement dated February 7, 1990 among the Sellers, the
Maker and the Holder.
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IN WITNESS WHEREOF, the undersigned Maker has hereunto caused this
instrument to be duly executed and sealed as of the day and year first above
written.
MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P, a Delaware limited
partnership
By: Marriott MIDAH One Corporation, a
Delaware corporation. Sole General
Partner
By: /s/ Jeffrey P. Mayer
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Name Jeffrey P. Mayer
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Title: Vice President
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Attest [SIGNATURE APPEARS HERE]
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Name
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Title SECRETARY
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[CORPORATE SEAL]
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